Vol. 8, Nos. 47
Covering Cases Published in the Advance Sheets through November 19, 2001

Highlights of this Issue:

Supreme Court Decisions:

Border Searches and Seizures - Permissible Scope and Jurisdiction:

Malpractice Claim Permitted When Counsel Fails to Explain the Benefits of Cooperating:

Retroactivity of the Immigration Laws:

We continue our analysis of some of the many significant Guideline Amendments that became effective on November 1, 2001, as part of the largest single overhaul of the Guidelines since they were first enacted. This week we focus on the former Guideline provisions relating to fraud and theft crimes have now been totally revamped and consolidated into a new single section 2B1.1 that covers all economic crimes.

United States v. Knights, No. 00-1260 (U.S. Sup. Ct. 12/10/2001) (Justice Rehnquist)

In a case that will greatly facilitate police searches of the more than four million individuals nationwide who are on some form of post-prison supervision (probation, parole or supervised release), the Supreme Court held that the police do not need a warrant or probable cause to search the home of a person on probation who has agreed, as part of his probation order, to submit to a search of his home or personal effects "at any time, with or without a warrant."

The search in question arose when deputy sheriffs in California searched the home of Mark Knights to look for evidence of vandalism of a nearby power plant. They had reason to suspect Knights, who was on probation for a drug offense, but they lacked a warrant or probable cause. Knights had, however, signed the standard California probation agreement which gave the police extraordinarily broad search powers.

Both the District Court and the Ninth Circuit had ruled that the search was invalid because it was for "investigatory" rather than "probationary" purposes. (See, U.S. v. Knights, 219 F.3d 1138 (9th Cir. 2000) (P&J, 7/24/00)). In the Court of Appeals case, the Court emphasized that the police officer was "not a bit interested" in the defendant's rehabilitation and that he was using the defendant's status as a probationer "as a subterfuge to enable him to search Knights' home without a warrant."

Writing for a rare unanimous court, Chief Justice William H. Rehnquist said the search was reasonable because under his agreement, Knights had "significantly diminished privacy interests." Citing Justice Department statistics on recidivism, he embraced the assumption that "the probationer is more likely than the ordinary citizen to violate the law." As a result, he wrote, the Government's "interest in apprehending violators of the criminal law, thereby protecting potential victims of criminal enterprise, may therefore justifiably focus on probationers in a way that it does not on the ordinary citizen."

For the record, we note that the agreements that probationers are required to sign as a condition of their release from prison are non-negotiable; and we have yet to see a case in which the court has even considered whether the forced acceptance of the standard, printed terms of probation and supervised release render the probationer's consent involuntary as a "contract of adhesion."

Harris v. U.S., No. 00-10666 (U.S. Sup. Ct. 12/10/2001) (Grant of Writ of Certiorari)

While we rarely comment when the Supreme Court grants a writ of certiorari in a given case (since there is no way of telling what that decision will mean), we felt it important to note a case in which the Supreme Court took such action last week. The Court granted certiorari in the case entitled U.S. v. Harris, 243 F.3d 806 (4th Cir. 2001) (see P&J, 3/5/01), where the Fourth Circuit had held that an enhancement for "brandishing" a gun under 18 U.S.C. § 924(c)(1)(A) was a sentencing factor, and not an element of the offense. Thus, even though the enhancement led to the imposition of a seven year mandatory minimum sentence, the Fourth Circuit held that the imposition of that enhancement was not required to be submitted to the jury under the Apprendi-rule.

The Supreme Court's grant of a writ of certiorari was limited to the single question; but the precise wording of that question was significant: "Given that a finding of brandishing', as used in 18 U.S.C. Sec. 924(c)(1)(A), results in an increased mandatory minimum sentence, must the fact of brandishing' be alleged in the indictment and proved beyond a reasonable doubt?"

If the Court ultimately does answer that question, it may clarify some of the many questions left over from its landmark ruling in Apprendi v. New Jersey, 530 U.S. 466 (2000); and it could have a profound effect on the many appeals where defendants have argued that the imposition of a mandatory minimum sentence was invalid under Apprendi. Certainly, this case will be eagerly watched as the Court continues its re-examination of the roles of judges and juries in criminal sentencing.

U.S. v. Perkins, 166 F.Supp.2d 1116 (W.D.Tex. 2001) (Judge Furgeson)

This is a decision that highlights the importance of never taking for granted the authority and jurisdiction of a Federal agency - no matter how customary their actions may appear to be. In this case, acting on a tip, a Customs official alerted two Border Patrol agents who were patrolling a road near the Texas-Mexico border "to be on the lookout" for a recreational vehicle (RV) loaded with marijuana. No further information was given identifying the vehicle, its occupants, or its precise location. When the two Border Patrol agents spotted an RV being driven by the defendant, they stopped it. After confirming that the defendant was a U.S. citizen, the Border Patrol agents asked for permission to search the RV. The parties disputed whether such consent was given; but the agents did discover marijuana in the vehicle and the defendant was arrested and charged with illegal drug possession.

The defendant moved to suppress the evidence of the marijuana seized; and that led the Court to consider two questions: "first, did the Border Patrol agents have the authority to make a roving patrol stop based solely on a suspicion of narcotics smuggling, and second, if the agents did not have authority to make the stop, is suppression the proper remedy?" (Id., at 1120).

In considering those questions, Judge Furgeson examined the statutory authority and jurisdiction of the Border Patrol in detail; and he came up with a number of surprising conclusions - conclusions that could have an impact on a broad range of cases.

According to its Web site, the U.S. Border Patrol is "the mobile uniformed law enforcement arm of the INS." It was officially established by an Act of Congress on May 28, 1924 (now codified in 8 U.S.C. § 1357(a)). After examining that statute, Judge Furgeson concluded that Border Patrol agents have extremely limited enforcement and arrest authority under existing law. He explained: "Though its name is somewhat deceptive, the Border Patrol is not charged with patrolling the border for any and all criminal activity and its agents are not general law enforcement officers. . . . Rather, the primary duty of the Border Patrol is the enforcement of immigration laws. Accordingly, the authority of the Border Patrol to seize, question, search, and arrest under Title 8 is narrowly tailored to the performance of this duty." (Id., at 1121).

Amplifying on that theme, Judge Fergeson then explained that Border Patrol agents do not, for example, have the right "to conduct roving patrol stops to investigate suspected violations of any and all criminal laws (including narcotics laws)" and they "do not have the authority, under the immigration laws, . . . to search bags, containers, or compartments too small to conceal persons." (Id., at 1125) (Emphasis in original). In fact, Judge Fergeson concluded, "Border Patrol agents are statutorily authorized to investigate only immigration law matters" and they may make an arrest "for a non-immigration law felony only if the agents are performing duties relating to the enforcement of the immigration laws at the time of the arrest." (Id.) (Emphasis in original.)

The Government argued that, despite the statutory limits of § 1357(a), the search in this case was proper because the Attorney-General has "cross designated" Border Patrol agents as DEA agents under a 1996 Memorandum of Understanding between the DEA and the INS, which purported to give Border Agents the right, under Title 21 of the U.S. Code, to make narcotics arrests. The Attorney General has filed copies of that Memorandum in the courts; and it has apparently been relied upon by the courts as evidence of the authority of Border Patrol agents to make arrests.

Judge Fergeson noted that "[t]he lawfulness of the Attorney-General's cross-designation of Border Patrol agents with Title 21 arrest authority has never been directly addressed by any court." (Id., at 1127.) However, after analyzing the law and its legislative history, he concluded that the Attorney General does not have the authority to cross-designate Border Patrol agents with Title 21 enforcement authority." (Id.). He rested that ruling on two premises. First, he found that "the circumscription of the Border Patrol's general arrest authority was deliberate. . . . Congress did not want to create an independent drug enforcement agency; nor did Congress want to compromise the Border Patrol's vital role of enforcing immigration laws." (Id., at 1122).

Second, he found that "Title 21 is devoid of any provision that purports to allow the Attorney General to cross-designate another federal agency or other non-DEA employees with narcotics law enforcement powers." (Id., at 1127).

Having set off a rather large maelstrom, Judge Fergeson then proceeded to his second question: whether suppression of the evidence was the appropriate remedy. On that issue, he reverted to more conventional reasoning and held that the evidence seized in this case should not be suppressed. First, he reasoned that "[e]vidence gathered in contravention of statute should be excluded only where the violation of the statute amounted to a violation of a constitutional right." (Id., at 1131).

Then, while he agreed that "the limitations on the arrest powers of the Border Patrol (or any other specialized federal law enforcement agency) implicate constitutional rights" (id., at 1132), he declined to order suppression for two reasons. First, he found that "the need to deter future violations of § 1357(a)(5) does not yet justify suppressing the evidence here." (Id., at 1133). But he warned that continued roving patrol stops by Border Patrols would result in suppression.

Second, he concluded that the suppression of the evidence sought in this case was not warranted "in part because of other constitutional protections." On that issue, he concluded that the Border Patrol agents were acting in good faith when they made the stop in this case; and that, under the good faith exception to the exclusionary rule, "evidence is not to be suppressed . . . where it is discovered by officers in the course of actions that are taken in good faith and in the reasonable, though mistaken, belief that they are authorized." (Id.)

Because the ruling in this case will put a severe crimp on the drug activities of the Border Patrol, we expect it to be appealed; and we will attempt to follow its progress and report on it or any other decisions that address the same limitations on the authority and jurisdiction of U.S. Border Patrol.

The 2001 Sentencing Guideline Amendments

On November 1, 2001, a package of 28 new amendments to the Federal Sentencing Guidelines (Amendment Nos. 608-636) became effective. Those amendments are set forth in 174 pages of text and commentary that can be viewed on the Internet at http://www.ussc.gov/2001guid/appc-12.pdf/. They were part of one of the most extensive overhauls of the Guidelines that have ever taken place; and, among other things, they resolved 19 Circuit Court splits that had developed over the years.

Two weeks ago we noted some of the significant changes that were enacted to the money laundering Guidelines. This week we note some of the changes that relate to "economic crime sentencing." From time to time over the next several weeks we will address some of the other significant new changes.

Pursuant to Amendment No. 617, the Sentencing Commission has radically changed its sentencing approach to fraud and theft crimes. The former Parts B and F of Chapter Two of the Guidelines were deleted in their entirety and consolidated into a new single sub-chapter of the Guidelines, entitled "Basic Economic Offenses." Thus, former § 2B1.1 (entitled "Offenses Involving Property") and former § 2F1.1 (entitled "Offenses Involving Fraud and Deceit") are now governed by the new Economic Crimes provisions contained in the revamped Part B of the Guidelines. The Commission enacted these changes "to make sentencing [of] economic crime offenders simpler and fairer"; but the changes are certainly more complex. It will not only take time to become familiar with the many changes that have been wrought; it will take time for the courts to determine which of their precedents under the old §§ 2B1.1 and 2F1.1 apply to the new provisions.

Among the hundreds of small changes, we note that all of the previous references to the Loss Amount Chart in § 2F1.1 have been amended to refer to § 2B1.1. The base offense level for the new consolidated § 2B1.1 is 6 - which represents a two level increase for theft and property destruction offenses, but makes no change in the offense level for fraud crimes. And, in calculating the "losses" attributable to such economic crimes, the Commission has adopted a new "net loss approach" under which loss can be reduced by the amount of money returned to the victims.

For an excellent and detailed analysis of all the recent Amendments to the Guidelines, we call your attention to an article, published by the NACDL in the December, 2001 issue of The Champion Magazine, entitled "The 2001 Sentencing Guideline Amendments." That article was written by Janet G. Hinton, a paralegal with the office of the Federal Public Defender for the Eastern District of Missouri. Through the gracious courtesy of Ms. Hinton and the NACDL, we have posted a copy of that article on the Members secsion of our web site at www.ussguide.com/. The article presents both an overview and a roadmap to the many Guideline changes that became effective on November 1, 2001.

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